Jackson v. Hartford Life and Accident Insurance Company

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DIANA JACKSON,

Plaintiff,

:

v. Case No. 2:22-cv-3955

Judge Sarah D. Morrison

Magistrate Judge Chelsey M.

HARTFORD LIFE AND Vascura

ACCIDENT INSURANCE

:

COMPANY,

Defendant.

OPINION AND ORDER

Plaintiff Diana Jackson brings this action under Section 502 of the Employee

Retirement Income Security Act of 1974 (“ERISA”) [29 U.S.C. § 1132] following

Defendant Hartford Life and Accident Insurance Company’s decision to terminate

benefits. (Compl., ECF No. 1.) The Administrative Record was filed under seal

(Admin. R. Vols. I–VI, ECF Nos. 18–23) and the parties filed cross-motions for

judgment (ECF Nos. 26, 27). Ms. Jackson and Hartford have each responded to the

other’s motion and replied in support of their own. (ECF Nos. 28, 29.)

For the reasons below, Hartford’s Motion for Judgment on the Administrative

Record (ECF No. 27) is GRANTED and Ms. Jackson’s (ECF No. 26) is DENIED.

I. FACTUAL BACKGROUND

A. As an employee of Ames Department Store, Ms. Jackson was

covered under the LTD Policy and the Life Policy.

From 1995 to 2001, Ms. Jackson worked as a receiving clerk in the warehouse

at Ames Department Store. (Admin. R. Vol. IV, PAGEID # 1990.) For the benefit of

its employees, Ames purchased several group insurance policies issued by Hartford.

(Admin. R. Vol. I, PAGEID # 52 et seq.) Those policies included, among others, a

long-term disability insurance policy (the “LTD Policy”) (id. at PAGEID # 67) and a

life insurance policy (the “Life Policy”) (id. at PAGEID # 87). As an Ames employee,

Ms. Jackson was covered under each.

LTD Policy. The LTD Policy provides income benefits to participants who

become Disabled. (See Admin. R. Vol. I, PAGEID # 67.) Disabled means that:

you [the participant] are prevented by:

1. accidental bodily injury;

2. sickness;

3. Mental Illness;

4. Substance Abuse; or

5. pregnancy,

from performing . . . one or more of the Essential Duties of Any

Occupation.

(Id., PAGEID # 83.) Any Occupation is defined as “an occupation for which you [the

participant] are qualified by education, training or experience” and which meets a

specified earnings threshold. (Id.)

To make a claim under the LTD Policy, and periodically thereafter if

Disabled, a claimant must submit Proof of Loss to Hartford. (Id., PAGEID # 81.)

Proof of Loss includes documentation of the status and prognosis of a participant’s

disabling condition, along with “any and all medical information, including x-ray

films and photocopies of medical records[.]” (Id.) The LTD Policy allows Hartford to

“have [the participant] examined to determine if [they] are Disabled.” (Id.)

Life Policy. The Life Policy provides that a participant’s life insurance

premiums will be waived when she is “Disabled.” (Id., PAGEID # 96.) The Life

Policy contains its own definition of “Disabled,” which resembles the LTD Policy’s.

Under the Life Policy, “Disabled” means

a condition that prevents [the participant] from doing any work for

which [she is] or could become qualified by education, training or

experience and it is expected that this condition will last for at least nine

consecutive months . . . ; or [the participant has] been diagnosed with a

life expectancy of 12 months or less.

(Id., PAGEID # 97.)

B. Ms. Jackson was first approved for disability benefits in 2002.

In 2002, Hartford determined that back pain and headaches prevented Ms.

Jackson from performing the essential functions of her job and approved her claim

for LTD Policy benefits.1 (Admin. R. Vol. V, PAGEID # 2088; see also Admin. R. Vol.

I, PAGEID # 532.) The decision was supported by (i) an MRI of her lumbar spine

showing “[d]egenerative disc disease at L4-L5 and L5-S1 greater than L3-L4” along

with “moderate central HNP [herniated nucleus pulposus] at L5-S1” (Admin. R. Vol.

V, PAGEID # 2094) and (ii) medical records from Ms. Jackson’s treating physicians

documenting “crippling” chronic pain in her low back and legs (see id., PAGEID #

2044).

Over the next nineteen years, Hartford collected medical records and

Attending Physician Statements (APS) (see, e.g., Admin. R. Vol. I, PAGEID # 243–

44), conducted interviews and surveillance (see, e.g., Admin. R. Vol. IV, PAGEID #

1 Hartford approved Ms. Jackson’s claim for waiver of Life Policy premiums

in 2003. (Admin. R. Vol. III, PAGEID # 1456.)

1725–1812, 1813–26), and engaged consultants (see, e.g., Admin. R. Vol. III,

PAGEID # 1508–14) to regularly evaluate Ms. Jackson’s continued eligibility for

LTD Policy benefits. Notably, during that time, the Social Security Administration

approved Ms. Jackson’s claim for disability insurance benefits (Admin R. Vol. IV,

PAGEID # 1915–23) and her primary care physician, Charles Kistler, M.D.,

repeatedly opined that Ms. Jackson was completely unable to perform in a work

environment (see, e.g., Admin R. Vol. III, PAGEID # 1366, 1466, 1483, 1594).

C. Hartford terminated Ms. Jackson’s benefits in October 2021.

1. Updated Medical Records

In March 2021, Ms. Jackson told Hartford she was treating with a new

orthopedic surgeon, Richard Fischer, M.D., and a new primary care physician, Mark

Ricaurte, M.D. (Admin. R. Vol. I, PAGEID # 394.) Hartford requested medical

records from these physicians. (Id., PAGEID # 393.)

Dr. Fischer saw Ms. Jackson in February 2021 for left shoulder pain. He

noted that Ms. Jackson sustained an injury after “she shoveled a lot of heavy

snow[.]” (Admin. R. Vol. II, PAGEID # 994.) Dr. Fischer observed that Ms. Jackson

had a “normal gait and stance[,]” was “alert and oriented[,]” and had “full passive

range of motion of the cervical spine without referred pain.” (Id.) He administered a

cortisone injection for the shoulder pain with immediate positive results. (Id.,

PAGEID # 995.)

Ms. Jackson started treating with Dr. Ricaurte in March 2019. (Admin. R.

Vol. I, PAGEID # 703.) Dr. Ricaurte observed at that time that Ms. Jackson had lost

70 pounds since gastric bypass surgery six-months earlier.2 (Id., PAGEID # 703–04.)

He also noted that Ms. Jackson was “ambulating normally” with “normal movement

of all extremities” and “normal curvature” of the spine. (Id., PAGEID # 704.)

September 2019 and March 2020 visits with Dr. Ricaurte showed similar

findings. (Id., PAGEID # 712–21.) He noted that Ms. Jackson “walk[ed] without

restrictions” and had no difficulty walking or climbing stairs. (Id., PAGEID # 712.)

Then, during an April 2020 visit, Ms. Jackson reported that she “tries to walk

outside or use a treadmill for at least 30 minutes every day.” (Id., PAGEID # 727.)

She had also been “weight training but has not been able to lately due to arthritis

flare up in her hands.” (Id.)

Dr. Ricaurte ordered an x-ray of Ms. Jackson’s lumbar spine in November

2020. (See id., PAGEID # 811.) The imaging revealed “mild intervertebral disc

height loss at L3-L4, L4-5 and L5-S1” along with “[m]oderate multilevel

degenerative changes [in] lumbar spine.” (Id., PAGEID # 815.)

At an April 15, 2021 appointment with Dr. Ricaurte, Ms. Jackson complained

of “increased anxiety” and “shooting pain down her back and then it feels like it

locks up.” (Id., PAGEID # 747.)

2. Independent Medical Examination

After reviewing the treatment records from Drs. Fischer and Ricaurte,

Hartford concluded that “the records do not provide a clear level of function[,]” as

2 Ultimately, Ms. Jackson lost more than 100 pounds. No one argues that her

substantial weight loss contributed to any improvement in her back pain or

expansion of her functional capacity.

they both confirm multi-level degenerative disc disorder and reflect stability with

full range of motion. (Admin. R. Vol. I, PAGEID # 386.) Hartford’s Clinical

Management reviewer recommended an Independent Medical Examination (“IME”)

with an orthopedist “to clarify [Ms. Jackson’s] level of function.” (Id.)

Orin Hall, M.D. conducted an IME on August 13, 2021. (See Admin. R. Vol.

III, PAGEID # 1219.) Dr. Hall’s report summarized Ms. Jackson’s history and

current complaints before turning to the physical examination results. (Id.,

PAGEID # 1220–21.) He then summarized the treatment records reviewed,

including notes dating back to 1999. Ultimately, Dr. Hall opined that:

Ms. Jackson would be capable of working with the recommended

restrictions as outlined below. The basis for my recommendation stems

from my review of the provided records as well as today’s examination

findings. Such findings include a slightly antalgic gait and the fact she

had a minimal amount of difficulty with heel and toe walking and

squatting unassisted. She was also found to have decreased range of

motion of her lumbar spine with 4/5 muscle strength noted at both hip

flexor muscle groups. She had decreased sensation noted at the left

upper extremity in the C6 through C8 nerve root distributions and at

the left lower extremity in the L4 through S1 nerve root distributions.

There were no other focal neurological deficits noted.

(Id., PAGEID # 1239.) He further recommended the following restrictions:

[S]tand a total of 2 hours in an 8 hour shift up to 30 minutes at a time.

[W]alk a total of 2 hours in an 8 hour shift up to 30 minutes at a time.

[S]it a total of 8 hours in an 8 hour shift.

(Id.)

Hartford shared Dr. Hall’s report with Ms. Jackson’s treating physicians. Dr.

Kistler indicated that he disagreed with the conclusions but did not provide any

explanation. (Admin. R. Vol. II, PAGEID # 1130.) Dr. Fischer neither agreed nor

disagreed. (Id., PAGEID # 1159.) Dr. Ricaurte did not respond.

3. Employability Analysis Report

On September 3, 2021, Hartford created an Employability Analysis Report

(“EAR”) using Dr. Hall’s opined limitations. (Id., PAGEID # 1131.) Per the

September 2021 EAR, there were at least five “viable employment matches” for Ms.

Jackson in the workforce. (Id., PAGEID # 1133.)

4. Claim Denial Letter

On October 1, 2021, Hartford sent Ms. Jackson a letter concluding that she

did not meet the LTD Policy’s definition of Disabled beyond that date. (Admin. R.

Vol. I, PAGEID # 149–57.) The letter first identifies the relevant terms of the LTD

Policy. It then explains that LTD Policy benefits and Social Security disability

benefits have different eligibility and ongoing requirements. The letter then

summarizes the records relied upon in making the adverse benefit determination—

including Dr. Hall’s IME report and the September 2021 EAR. It concludes with a

summary of Ms. Jackson’s appeal rights.

D. Hartford denied Ms. Jackson’s appeal in October 2022.

1. Updated Medical Records

Ms. Jackson filed her notice of appeal on March 18, 2022. (Admin. R. Vol. II,

PAGEID # 1061.) She provided Hartford with updated records from several

providers, including: Dr. Kistler; Raymond Wurapa, M.D.; Craig Dimitris, M.D.;

Roberta Michelle Watts, CNP; and Charles Paugh, PhD. (See, e.g., id., PAGEID

# 954.)

Dr. Kistler’s updated records include a November 10, 2021 MRI of Ms.

Jackson’s lumbar spine. (Id., PAGEID # 1013.) The MRI revealed “[m]ild

degenerative changes with mild foraminal narrowing most pronounced L3-L4” with

“[s]mall lesions within L5 and S1 which are nonspecific but can be due to atypical

hemangiomas.” (Id., PAGEID # 1014.)

Dr. Dimitris treated symptoms of osteoarthritis in Ms. Jackson’s left thumb

in 2019. (Id., PAGEID # 956–66.) Dr. Wurapa treated her right thumb in 2020. (Id.,

PAGEID # 967–71.)

Nurse Watts submitted an Attending Physician Statement (APS) dated

August 23, 2022. (Admin. R. Vol. I, PAGEID # 605–06.) Although the APS is largely

illegible, it does state that Ms. Jackson is “permanently and totally disabled from all

employment duties.” Nurse Watts also submitted a letter opining that Ms. Jackson

has “significant physical and psychological limitations” that render her “unable to

maintain employment[.]” (Id., PAGEID # 608.)

Dr. Paugh completed a psychological evaluation of Ms. Jackson on August 29,

2022. (Id., PAGEID # 597–603.) Dr. Paugh was also Ms. Jackson’s treating

psychologist, having established a relationship with her five months prior. (Id.,

PAGEID # 598.) Dr. Paugh summarized his conclusions:

The following conclusions regarding Diana Jackson’s condition as it

applies to the potential designation of global disability impairment was

based on results of information obtained during multiple interviews

with the patient, psychological testing, and a medical record review of

available information.

Having the opportunity to conduct interviews on four separate

occasions, prior to the awareness of this disability determination, I had

ascertained information from Ms. Jackson that identified a history of

anxiety that extends back approximately 20 years or longer. This

condition worsened with the serious car accident resulting in a traffic

fatality and injuries to the patient. Up until April of this year Diana had

only treated using psychotropics which are only designed to provide

symptom relief. She continues to have impairments in many areas of

daily activities such as her ability to manage stressors or

concentration/persistence/pace.

Based on information received from the multiple interviews, record

review, preliminary self-administered psychological testing in addition

to a reasonable degree of psychological certainty, I have concluded that

Diana Jackson is permanent and totally impaired as a result of her

diagnosis of Generalized Anxiety Disorder and PTSD. As well as

lingering issues related to Bereavement. She would be unable

successfully engage in vocational rehabilitation or sustain remunerative

employment.

(Id., PAGEID # 602–03.)

2. Independent Medical Review

Hartford engaged a medical consultant, Charles Renninger, M.D., and a

psychological consultant, Veronika Glusker, Psy.D., to perform Independent

Medical Reviews (“IMR”) of Ms. Jackson’s medical records. Drs. Renninger and

Glusker were asked to opine on Ms. Jackson’s “overall functionality” from October

2, 2021 (the first date on which she no longer satisfied the definition of Disability)

onward. (See, e.g., id., PAGEID # 660.)

Dr. Renninger. Dr. Renninger, a board-certified orthopedic surgeon, first

reviewed and summarized Ms. Jackson’s medical records. (Id., PAGEID # 637–60,

694.) He then noted that he tried but was unable to reach Nurse Watts and, while

he did speak with Dr. Kistler, there was no additional information provided. (Id.,

PAGEID # 660.) Dr. Renninger then opined that Ms. Jackson had the following

functional limitations:

Sitting: up to 40 mins. at a time, up to 6 hrs./day

Standing: up to 10 mins. at a time, up to 1 hr./day

Walking: up to 10 mins. at a time, up to 1 hr./day

(Id., PAGEID # 661.) He further found that Ms. Jackson’s

self-reported symptoms and activities of daily living are not supported

by the clinical exam findings and objective medical information. She

does have degenerative disc disease in her lumbar spine and severe

osteoarthritis in her left thumb. However, there are no objective

examination findings in the medical records provided to support the

severity of the claimant’s self-reported symptoms and activities of daily

living. There are no findings of upper extremity range of motion,

strength, sensation, or deep tendon reflexes to indicate lack of function.

The same applies to the claimant's lower extremities. There has been no

follow up on the claimant’s left hand and thumb pain. Physical therapy

was prescribed but there are no records to indicate if the claimant

attended any sessions.

(Id., PAGEID # 662.) Dr. Renninger concluded by stating his “professional medical

opinion that the provided documentation does not support that [Ms. Jackson] was

experiencing chronic pain as of 10/2/2021 through the present of a severity that

would prevent her from performing full-time work.” (Id., PAGEID # 663; see also id.,

PAGEID # 695.)

Dr. Glusker. Dr. Glusker is a board-certified psychologist. (Id., PAGEID

# 668.) She reviewed and summarized Ms. Jackson’s records with a focus on

psychological impairment. (Id., PAGEID # 669.) She explained:

While [Ms. Jackson’s] ongoing stressors, traumatic losses, and

symptoms of anxiety are acknowledged, her symptoms were not of a

severity as to limit occupational functioning. The claimant’s mental

status examinations indicated that she presented as mildly anxious and

tearful but had no evidence of other abnormalities. Thus, the claimant’s

findings upon mental status examination would not preclude her from

work activities or daily functioning. The claimant reported having a

diagnosis of post-traumatic stress disorder, but there was no indication

of referrals for EMDR or trauma therapy. In addition, the claimant does

not have any evidence of psychomotor agitation, psychosis, delusions,

hallucinations, homicidality, suicidality (intent or plan), self-destructive

behaviors, inability to perform [activities of daily living], or involuntary

psychiatric hospitalizations. The claimant has not required a higher

level of care needed for her psychiatric conditions, such as [intensive

outpatient], [partial hospitalization], or hospitalization. . . . There was

also no mention of impairment in insight and judgment. There was no

indication that the claimant was treating with a psychiatrist for

medication management, and given that disability is being considered,

one would expect monthly medication adjustments and multiple notes

from a psychiatrist. . . . Therefore, restrictions and limitations are not

supported.

(Id., PAGEID # 671.) Dr. Glusker concluded that “there is no evidence of findings to

suggest limitations in [Ms. Jackson’s] status as of 10/2/21 through the present.” (Id.;

see also id., PAGEID # 699–700.)

3. Updated EAR

After Drs. Renninger and Glusker completed their IMRs, Hartford performed

a second EAR. (Id., PAGEID # 611.) This one, dated July 29, 2022, incorporated the

more restrictive functional limitations opined by Dr. Renninger. Still, the same five

occupations are identified as viable employment matches. (Id., PAGEID # 613.)

4. Appeal Denial Letter

On October 20, 2022, Hartford sent Ms. Jackson a letter denying her appeal.

(Id., PAGEID # 120–25.) The letter listed all new medical evidence considered

before summarizing the IMRs and updated EAR. It concluded by advising Ms.

Jackson that the initial determination—that she was no longer Disabled—was

being upheld.

After receiving Harford’s decision on appeal, Ms. Jackson filed the instant

action.

II. STANDARD OF REVIEW

In a challenge to denial of benefits under ERISA § 502, the plaintiff must

prove, by a preponderance of evidence, that she is entitled to receive the benefit.

Javery v. Lucent Tech., Inc. Long Term Disability Plan, 741 F.3d 686, 700–01 (6th

Cir. 2014) (citing Tracy v. Pharmacia & Upjohn Absence Payment Plan, 195 F.

App’x 511, 516 n. 4 (6th Cir. 2006)). ERISA benefit determinations are reviewed de

novo unless the plan expressly grants its administrator or fiduciary discretionary

authority “to determine eligibility for benefits or to construe the terms of the plan.”

Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). If a plan grants

discretionary authority, “application of the highly deferential arbitrary and

capricious standard of review is appropriate[.]” Yaeger v. Reliance Std. Life Ins. Co.,

88 F.3d 376, 380 (6th Cir. 1996). Here, the parties disagree about whether de novo

or arbitrary-and-capricious review applies. Because the LTD and Life Policies give

Hartford “full discretion and authority to determine eligibility for benefits and to

construe and interpret all terms and provisions” (Admin. R. Vol. I, PAGEID # 83,

100), the Court proceeds under the arbitrary-and-capricious standard.

“A decision reviewed according to the arbitrary and capricious standard must

be upheld if it results from ‘a deliberate principled reasoning process’ and is

supported by ‘substantial evidence.’” Schwalm v. Guardian Life Ins. Co. of Am., 626

F.3d 299, 308 (6th Cir. 2010) (quoting Baker v. United Mine Workers of Am. Health

& Ret. Funds, 929 F.2d 1140, 1144 (6th Cir. 1991)). As the Sixth Circuit points out,

this test has both a substantive component (substantial evidence) and a procedural

one (deliberate and principled reasoning process). Autran v. Procter & Gamble

Health and Long-Term Disability Benefit Plan, 27 F.4th 405, 411 (6th Cir. 2022).

Substantial evidence exists “if a rational person could conclude that the evidence

was adequate to justify the decision.” Id. at 412 (internal quotation and citation

omitted). Though a deliberate, principled reasoning process is not so easy to define,

courts often ask questions like:

Did the administrator consider all the evidence or overlook evidence that

cut the other way? If the administrator departed from its earlier benefits

ruling, did it adequately explain the change? If the Social Security

Administration found that the participant was disabled under federal

law, did the administrator consider this ruling? If the administrator

credited certain doctors over others, did the credited doctors undertake

a mere “file” review or conduct a thorough in-person evaluation? And did

the administrator have a conflict of interest that affected its decision?

(Id.) (collecting cases). Though deferential, arbitrary-and-capricious review is no

“rubber stamp”—rather the court examines the “quantity and quality of the . . .

evidence on each side.” Schwalm, 626 F.3d at 308 (citing Evans v. UnumProvident

Corp., 434 F.3d 866, 876 (6th Cir. 2006)). If, following such review, “it is possible to

offer a reasoned explanation, based on the evidence, for a particular outcome, that

outcome is not arbitrary or capricious.” Shields v. Reader’s Digest Ass’n, Inc., 331

F.3d 536, 541 (6th Cir. 2003) (quoting Davis v. Kentucky Fin. Cos. Ret. Plan, 887

F.2d 689, 693 (6th Cir. 1989)).

III. ANALYSIS

A. LTD Policy — Disability Benefits

Hartford argues that its decision to terminate Ms. Jackson’s benefits in

October 2021 was neither arbitrary nor capricious because, at that point, she failed

to satisfy the LTD Policy’s definition of Disability. The LTD Policy provides that a

participant is only entitled to further benefits if she is unable to perform the

essential duties of any occupation for which she is qualified by education, training,

or experience. Hartford believes that the opinions of the medical examiner and

medical reviewers, the medical records and clinical evidence, and the EARs support

its conclusion that Ms. Jackson is now able to work certain sedentary, unskilled

jobs. The Court agrees.

Substantial evidence supports Hartford’s decision to terminate Ms. Jackson’s

benefits. Dr. Hall examined Ms. Jackson on August 31, 2021. (Admin. R. Vol. III,

PAGEID # 1219–41.) He noted Ms. Jackson’s subjective reports before performing a

physical examination. Dr. Hall observed that Ms. Jackson had a “slightly antalgic

gait” but only a “minimal amount of difficulty with heel and toe walking and

squatting unassisted.” He noted “multiple arthritic nodules” on Ms. Jackson’s

hands, but observed “good grip and pinch strength bilaterally.” Dr. Hall reported

“decreased range of motion and pain with movement” at the cervical spine, but

“otherwise full range of motion at both upper extremities and both lower

extremities.” Ms. Jackson showed “4/5 muscle strength . . . at both hip flexor muscle

groups” and “5/5 muscle strength in both upper extremities and both lower

extremities.” After examining Ms. Jackson and reviewing her medical records, Dr.

Hall opined that “Ms. Jackson would be capable of working” with certain

limitations. Dr. Renninger, a board-certified orthopedic surgeon, reviewed Ms.

Jackson’s file on appeal and came to the same conclusion. (Admin. R. Vol. I,

PAGEID # 637–64, 694–96.) Board-certified psychologist Dr. Glusker went one step

further, finding that Ms. Jackson’s psychiatric condition warranted no occupations

restrictions or limitations. (Id., PAGEID # 668–72, 699–700.) Hartford also

identified five “viable employment matches” that account for Ms. Jackson’s

functional capacity (as opined by Dr. Renninger), training and experience, and prior

wage. (Id., PAGEID # 611–31.)

Ms. Jackson highlights records that cut in the other direction: that Nurse

Watts, Dr. Paugh, and Dr. Kistler opined (in Dr. Kistler’s case, repeatedly) that she

could not return to the workplace; that she continued to suffer from degenerative

disc disease; and that she now suffered from arthritis in her hands. But pointing to

evidence supporting an opposite conclusion does not establish that Hartford’s

decision to terminate benefits is unsupported by substantial evidence. See Autran,

27 F.4th at 412 (6th Cir. 2022) (“[W]hen the record contains evidence that could

support a rational decision in either direction . . . , the administrator’s choice

between this conflicting evidence cannot be considered arbitrary on substantive

grounds.”); Fenwick v. Hartford Life & Accident Ins. Co., 841 F. App’x 847, 857 (6th

Cir. 2021).

Hartford’s Motion for Judgment on the Administrative Record is thus

GRANTED.

Ms. Jackson makes several arguments for the opposite conclusion. None is

availing.

1. Ms. Jackson argues there was no evidence that her

condition improved.

Ms. Jackson first asserts that Hartford’s decision to terminate her benefits

should be reversed because there is no evidence that her decades-long condition has

improved. (ECF No. 26, citing, inter alia, Kramer v. Paul Revere Life Ins. Co., 571

F.3d 499, 507 (6th Cir. 2009) (reversing the district court’s decision to uphold a

termination of disability benefits in part because “there is no explanation for the

decision to cancel benefits that had been paid for some five years based upon the

initial determination of total disability in the absence of any medical evidence that

the plaintiff's condition had improved during that time”). The record belies this

assertion. Treatment notes from Drs. Fischer and Ricaurte indicated that Ms.

Jackson’s back pain may have abated and her ability to engage in physical activity

may have improved. Noting this possible change, Hartford engaged Dr. Hall to

conduct a review of Ms. Jackson’s file and a physical examination of Ms. Jackson

herself. That exam supported Hartford’s conclusion that Ms. Jackson’s condition

had improved, such that she was no longer Disabled.

2. Ms. Jackson challenges the reliability of Hartford’s

evidence.

Ms. Jackson next attacks the reliability of the evidence Hartford uses to

support its decision.

a) Dr. Hall’s IME Report

Ms. Jackson raises three separate concerns about Dr. Hall’s IME’s report.

First, she asserts that Hartford “cherry-picked” the record by failing to provide Dr.

Hall with materials favorable to her position. She complains that Dr. Hall was not

given Dr. William Fitz’s 2008 IME report or the decision approving her claim for

Social Security disability benefits in 2005.3 Ms. Jackson does not identify anything

in or about those documents that would have altered Dr. Hall’s conclusion. Instead,

she theorizes that “Hartford did not want Dr. Hall to know that other physicians

had found [her] to be disabled.” (ECF No. 28, PAGEID # 2717.) But her theory does

not hold water: Dr. Hall was provided with the many Attending Physician

Statements in which Dr. Kistler concluded that Ms. Jackson was “permanently and

totally disabled.”

Next, Ms. Jackson urges the Court to discount Dr. Hall’s report because he

“performed no provocative testing.” (ECF No. 26, PAGEID # 2676.) Her only

supporting evidence, however, is a list of provocative tests for lumbar spondylosis

pulled from “physio-pedia.com.” This list proves nothing.

Finally, Ms. Jackson takes issue with what she perceives to be an

inconsistency between the observations and conclusions in Dr. Hall’s report. For

example, Ms. Jackson notes that Dr. Hall observed arthritic nodules on her hands

and a decreased range of motion in her cervical spine, yet opined that she had no

restrictions in reaching, handling, fingering, or feeling. She does not propose a more

appropriate level of functional capacity or offer anything (but her ipse dixit) to

demonstrate that the observation and conclusion are in fact inconsistent.

3 Ms. Jackson also complains that Hartford did not give Dr. Hall medical

records describing the severe osteoarthritis in her hands. She later acknowledges

that Hartford did not have any such records to give – neither Dr. Wurapa’s nor Dr.

Dimitris’s treatment notes were provided to Hartford before Dr. Hall completed his

examination.

b) Dr. Renninger’s IMR

Ms. Jackson next argues that Dr. Renninger’s IMR report “clearly”—but

inappropriately—“relied on credibility assessments.” (ECF No. 28, PAGEID # 2719.)

Not so. Dr. Renninger opined that the objective medical evidence in the record did

not support Ms. Jackson’s self-reported symptoms and activities of daily living. That

is a comparative observation, not a credibility assessment. Cf. Leppert v. Liberty

Life Assurance Co. of Boston, 661 F. App’x 425, 438 (6th Cir. 2016) (dismissing

claimant’s assertion that insurer made an improper credibility assessment based on

file review by explaining that insurer “did not say that it believed [claimant] was

malingering” when it “accurately pointed out that there is no objective medical

evidence in the record” to support claimant’s self-reported symptoms).

c) Dr. Glusker’s IMR

Ms. Jackson also attacks the reliability of Dr. Glusker’s IMR. She argues that

“[i]t is axiomatic that competent evaluation of a claimant’s mental illness requires

an in-person evaluation.” (ECF No. 28, PAGEID # 2719.) Though there is nothing

“inherently objectionable about a file review by a qualified [provider] in the context

of a benefits determination,” Calvert v. Firstar Fin., Inc., 409 F.3d 286, 296 (6th Cir.

2005), courts generally accord greater weight to the opinions of providers—

especially psychiatrists and psychologists—who have examined the claimant in-

person. See Autran, 27 F.4th at 412 (“If the administrator credited certain doctors

over others, did the credited doctors undertake a mere ‘file’ review or conduct a

thorough in-person evaluation?”); see also Javery, 741 F.3d at 702 (explaining that

“file reviews are questionable as a basis for identifying whether an individual is

disabled by mental illness”) (citing Smith v. Bayer Corp. Long Term Disability Plan,

275 F. App’x 495, 508 (6th Cir. 2008) (explaining that in-person examination is

particularly important in evaluating claimed mental impairments)).

The issue here is not so much whether Ms. Jackson was disabled by mental

illness, as it is whether Ms. Jackson had a documented history of disabling mental

illness.4 The LTD Policy requires Proof of Loss satisfactory to Hartford. Hartford

relied on Dr. Glusker’s review of the record to conclude that there was not sufficient

clinical evidence of any disabling mental condition, and it acted reasonably in doing

so.5

Dr. Glusker had access to twenty years’ worth of Ms. Jackson’s medical

records. Her report summarized the evidence as it pertained to Ms. Jackson’s

mental health—and highlighted the paucity of that evidence. She noted that Ms.

4 Dr. Glusker’s IMR states: “The claimant reported having symptoms of

anxiety and post-traumatic stress disorder for 20 years which suggests that her

symptoms preceded the time period in question and that the claimant was able to

work for years despite her symptoms.” (Admin. R. Vol. I, PAGEID # 700.) Ms.

Jackson argues that this proves Dr. Glusker did not closely examine the record,

which showed that Ms. Jackson had not in fact worked for the previous 20 years.

But Dr. Glusker was only asked whether the record reflected impairment from

October 2, 2021 (the date her benefits ended) onward. As Ms. Jackson noted in the

context of Dr. Hall’s IME, Hartford’s provider consultants were not provided with

earlier documents concluding that Ms. Jackson was disabled, like the Social

Security disability determination or 2008 IME. What’s more, there is no indication

that the duration of Ms. Jackson’s symptoms relative to her work history

outweighed Dr. Glusker’s assessment of the scarce objective evidence of mental

impairment in the record.

5 To the extent Ms. Jackson argues that she is entitled to LTD Policy benefits

on account of her psychiatric condition, she fails. For the same reasons Dr. Glusker

opines that Ms. Jackson does not require occupational limitations, the Court finds

Ms. Jackson fails to carry her burden of proof by a preponderance of the evidence.

Jackson’s documented mental status exams “indicated that she presented as mildly

anxious and tearful but had no evidence of other abnormalities.” (Admin. R. Vol. I,

PAGEID # 671.) And, although Dr. Paugh diagnosed Ms. Jackson with generalized

anxiety disorder and post-traumatic stress disorder (PTSD), there was “no

indication of referrals for neuropsychological testing . . . , EMDR[6] or trauma

therapy” or any “higher levels of care such as [intensive outpatient], [partial

hospitalization], or hospitalization.” (Id., PAGEID # 700.)

Finally, Dr. Glusker acknowledged that Ms. Jackson presented to the

emergency room in March 2022 with anxiety symptoms, but found that other

evidence of a disabling psychiatric condition—such as hospital admission, treatment

and medication management by a psychiatrist, or symptoms commonly associated

with impairment—was not present in the record.

d) Hartford’s EARs

Ms. Jackson argues that Hartford’s Employability Assessment Reports are

flawed because the identified occupations would require training on tools and

materials, which is inconsistent with the LTD Policy language.7 Ms. Jackson mis-

reads the relevant language.

6 “Eye movement desensitization and reprocessing therapy, commonly known

as EMDR, is a mental health therapy method. EMDR treats mental health

conditions that happen because of memories from traumatic events in your past. It’s

best known for its role in treating post-traumatic stress disorder (PTSD), but its use

is expanding to include treatment of many other conditions.” CLEVELAND CLINIC,

EMDR Therapy, available at https://my.clevelandclinic.org/health/treatments/

22641-emdr-therapy (last visited June 23, 2024).

7 Ms. Jackson also argues that the EAR is inconsistent with Dr. Renninger’s

opinion that she can sit for only six hours in an eight-hour shift. In her view,

It is “a fundamental principle of ERISA law—the plain language of the plan

controls.” West v. AK Steel Corp. Retirement Accumulation Pension Plan, 318 F.

Supp. 2d 579, 585 (S.D. Ohio 2004) (Beckwith, J.) (citation omitted). The LTD Policy

defines “Any Occupation” as those for which the claimant is “qualified by education,

training or experience[.]” (Admin. R. Vol. I, PAGEID # 83 (emphasis added).) The

“or” is disjunctive—meaning, an occupation for which Ms. Jackson is qualified by

education or experience alone satisfies the definition.

In performing the EAR, Hartford adjusted the Specific Vocational

Preparation level downward to account for Ms. Jackson’s limited education and

experience, thus “ensur[ing] occupations requiring short demonstration only were

considered.” (See id., PAGEID # 612.) That the occupations identified would require

some training on materials and tools does not mean that Ms. Jackson’s education

and experience are insufficient for her to perform the roles.

3. Ms. Jackson’s remaining arguments also fail.

Ms. Jackson’s remaining arguments are easily disposed of.

Social Security Finding. First, she argues that Hartford failed to explain the

basis for departing from the Social Security Administration’s 2005 disability

finding. (ECF No. 28 (citing 29 C.F.R. § 2560.503-1(g)(1)(vii)(A)(iii)).) The Court

disagrees. Hartford’s claim denial letter explained:

“common sense suggests” that the identified occupations require “sitting (without

breaks) . . . for a full eight-hour shift.” (ECF No. 28, PAGEID # 2722.) But Hartford

specifically incorporated Dr. Renninger’s functional limitations in the second EAR’s

search parameters. (See Admin. R. Vol. I, PAGEID # 611–12.) Ms. Jackson’s

unsupported perception of what those occupations might actually entail does

nothing to undermine the results of that search.

The Social Security Administration approved your Social Security

Disability claim . . . . Unlike the Social Security Administration (SSA),

we continue to gather additional information and assess your

entitlement to Long Term Disability (LTD) benefits on an ongoing basis,

as provided in the policy.

(Admin. R. Vol. I, PAGEID # 151.) The balance of the letter explains why that later-

gathered information drove Hartford’s decision to terminate benefits under the LTD

Policy.

Improper Delegation of Authority. Ms. Jackson argues that Hartford

“essentially delegated its decision-making” on appeal to Drs. Renninger and

Glusker and thus abdicated its fiduciary responsibilities. (ECF No. 28, PAGEID

# 2709–10.) The appeal denial letter proves otherwise. In that letter, Hartford

identifies medical evidence that it reviewed before forwarding to its consultants,

summarizes the results of a renewed EAR, and summarizes additional evidence

provided by Ms. Jackson during the appeal process.8 This does not indicate a

delegation of decision-making authority.

Post Hoc Explanation. Ms. Jackson next asserts that Hartford makes an

impermissible post hoc explanation for its decision. Ms. Jackson reads Hartford’s

brief as saying that a “conflict among [her] physicians [was] a basis for concluding

that [Ms.] Jackson was no longer disabled.” (ECF No. 28, PAGEID # 2712.) But

8 Elsewhere, Ms. Jackson argues that Hartford “unreasonably refused to

consider any of [her] evidence.” (ECF No. 28, PAGEID # 2723.) She complains that

certain evidence she considers favorable was not called out by name in the appeal

denial letter. As to Nurse Watts’s August 2022 submission, Dr. Paugh’s August

2022 psychological evaluation, and the 2021 MRI of her lumbar spine, Ms. Jackson

is incorrect: the appeal denial letter does address those materials. (Admin. R. Vol. I,

PAGEID # 123.) Finally, while the appeal denial letter does not address Dr.

Kistler’s 2020 APS, the claim denial letter does. (Id., PAGEID # 151.)

Hartford does not say that. Instead, Hartford says that conflicting medical

assessments of Ms. Jackson’s functional capacity caused it to order an IME; not to

terminate benefits.

Hartford’s Dual Role. Finally, Ms. Jackson points out the conflict of interest

inherent in Hartford’s dual-role as claims administrator and payor. “[C]ourts must

consider that conflict as one factor among several in determining whether the plan

administrator abused its discretion in denying benefits.” Cox v. Standard Ins. Co.,

585 F.3d 295, 299 (6th Cir. 2009). But the factor takes on less weight where, as

here, there is no evidence that the decision was the product of interested

consideration. Autran, 27 F.4th at 418 (explaining the “conclusory allegations of

bias based on this (relatively common) inherent conflict do not deserve much

weight” without “evidence suggesting that the conflict materialized in a concrete

way to influence the administrator's decisional process”) (internal quotation and

citation omitted).

* * *

Ms. Jackson fails to prove that Hartford acted arbitrarily or capriciously

when it concluded that she no longer satisfied the LTD Policy’s definition of

Disabled as of October 1, 2021. Her Motion for Judgment on the Administrative

Record is DENIED.

B. Life Policy — Premium Waiver

Because the Court upholds Hartford’s decision to terminate benefits under

the LTD Policy, it does the same a fortiori for premium waiver benefits under the

Life Policy.

IV. CONCLUSION

For these reasons, Hartford’s Motion for Judgment on the Administrative

Record is GRANTED; Ms. Jackson’s is DENIED.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE